Terrell Jean Diamond v. The State of Texas--Appeal from County Court at Law No 6 of Bexar County

MEMORANDUM OPINION
No. 04-02-00617-CR
Terrell Jean DIAMOND,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 6, Bexar County, Texas
Trial Court No. 800733
Honorable M'Liss Christian, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 23, 2003

AFFIRMED

Terrell Jean Diamond contends on appeal that the evidence is factually insufficient to support her criminal mischief conviction. We affirm the trial court's judgment

Background

Officer Lester Beaver and Officer Daniel Estrella received a call regarding loud music. The officers arrived at the location, contacted the owner, informed him of the complaint, and asked if he could turn the music off or down. William Diamond, the owner, responded that he would take care of it. The two officers remained in the vicinity. When the music was not turned down or off after several minutes, the officers returned to the residence and told Mr. Diamond that if he did not turn the music down, they would be required to cite him for public nuisance and disorderly conduct. After Mr. Diamond told the officers to cite him, the officers asked for his driver's license. Before Mr. Diamond returned with his license which he went to retrieve from inside, he told the band to stop the music. At some point during this exchange, Mrs. Diamond was yelling obscenities at the officers and yelled that she hated the neighbors for calling the police. Officer Estrella testified that Mrs. Diamond appeared to be intoxicated, and the other members of the party appeared to be restraining her from going through the gate to where the officers were standing. The officers left without issuing a citation.

The officers later received a dispatch for an assault at the Vivianos' residence. The Vivianos were the Diamonds' neighbors. When the officers arrived, they observed a hole in the glass on the outside of the front door. The officers rang the doorbell, but the occupants would not open the door until they announced they were police officers. Pictures of the door and the glass in the entryway were introduced into evidence.

The officers interviewed the Vivianos regarding the incident. Mrs. Viviano was very upset and shaken, and she could not stand by herself. Mrs. Viviano was wearing a yellow shirt that had a big tear in the front of it. The shirt was admitted into evidence. Mrs. Viviano told the officers that she heard a banging at her door. When she opened the door, Mrs. Diamond asked her if she had called the police. When Mrs. Viviano acknowledged that she had called the police, Mrs. Diamond used some obscenities and grabbed Mrs. Viviano to pull her outside. Mrs. Viviano pulled away from her and managed to get the door shut, but Mrs. Diamond put her fist through the window. Officer Beaver stated that it was Mrs. Diamond's grabbing at Mrs. Viviano that caused the window to break. After the interview, the officers returned to the Diamonds' residence, but Mrs. Diamond was not present.

Judy Viviano testified that her husband called the police regarding the party. Mrs. Viviano went to answer the doorbell wearing a yellow night shirt. After Mrs. Viviano acknowledged that she had called the police, Mrs. Diamond reached in and grabbed her shirt. When her shirt tore, Mrs. Viviano slammed the door, and Mrs. Diamond's other fist came through the glass. Mrs. Viviano stated that if the shirt had not torn, Mrs. Diamond would probably have succeeded in pulling her outside. In response to questioning, Mrs. Viviano denied pointing a gun at Mrs. Diamond and stated that she did not own a gun. Mrs. Viviano also denied threatening Mrs. Diamond. Mrs. Viviano also stated that her husband did not go the door with her, but when he heard the glass breaking, he came to the door and told her he was calling the police. Mrs. Viviano testified that she suffered a small bruise as a result of the incident when she hit the door or the door jamb. Pictures depicting the bruise were introduced into evidence.

Sean Danney, a neighbor of the Diamonds, was at the party on the night of the incident. After the officers arrived and said they had received a complaint regarding the loud music, Danney testified that the music was turned off immediately. Danney stated that Mrs. Diamond became teary and upset after the police came because she did not understand "why the last couple of times somebody had to call the police." Danney and Mrs. Diamond discussed which neighbor possibly made the call. Danney and another female, Virginia Leon, accompanied Mrs. Diamond when she went to ask the neighbor if she called the police. Danney stayed at the end of the driveway, and Danney testified that Leon stayed near her. Danney could not hear the exact words that were spoken, but she heard the voices of Mrs. Diamond and the lady who answered the door getting louder. Danney remembered the lady used the word "gun." Danney then saw the lady step back and close the door. Danney heard a crackling, crunching sound, and Mrs. Diamond screamed. As Mrs. Diamond approached the end of the drive, Danney saw that blood was dripping down her hand. Danney is a registered nurse, and in rendering first aid, Danney observed a cut on the back of Mrs. Diamond's hand but none across her fingers or knuckles. Danney stated that if Mrs. Diamond had hit the glass with her fist, she would expect Mrs. Diamond's knuckles to be injured.

During cross-examination, Danney stated that Mrs. Diamond had been drinking at the party, but she did not think that Mrs. Diamond was intoxicated. Danney stated that she did observe Mrs. Diamond go to the gate and question the officers regarding their presence but denied that Mrs. Diamond was yelling at them. Danney admitted that Mrs. Diamond did not like one of the female police officers in the area. Danney told Mrs. Diamond to wait until the following morning to approach the neighbors after things had calmed down. Danney followed Mrs. Diamond to the neighbors' house because Mrs. Diamond was upset and Danney did not want to see a confrontation started.

Virginia Leon, who cleaned house for Mrs. Diamond, also was present at the party. Leon was inside when the police came. Leon accompanied Mrs. Diamond to the neighbors' house. Leon was closer to the door than Danney. After the lady who answered the door responded that she had called the police, Mrs. Diamond turned around to leave when the lady at the door told her, "if you ever come back I am going to shoot you or whoever comes around you." Leon turned back to the lady and saw that she was holding something in her hand which Leon thought might be a gun. Leon then saw a man behind the lady pull something away from her, and the door was shut in Mrs. Diamond's face. Leon admitted seeing Mrs. Diamond grab the lady's shirt, but she did not see it tear. Leon further admitted that Mrs. Diamond was angry when she went to the neighbors' house. Leon denied that Mrs. Diamond punched her fist through the glass.

Jana Rodgers, another guest at the party, was assisting in cleaning the house after the party ended. When she took trash outside, Rodgers heard voices and heard a threat being made against Mrs. Diamond by a woman that involved getting a gun. Rodgers then heard a bang and a slam, and Mrs. Diamond cry out about her hand.

Mrs. Diamond testified that she went to the neighbors' house to ask them to call the Diamonds instead of the police when they had complaints. As Mrs. Diamond was turning away, the lady told her, "the next time you come here, I'm going to get my gun and I am going to shoot you and then I'm going to shoot anybody around you and your kids and your pets." Mrs. Diamond turned around, grabbed for her, and asked her what she said. The lady pulled away from her, pulling Mrs. Diamond forward and tearing a piece of the lady's T-shirt. As she was being pulled forward, she saw the door coming for her face and put up her hand to cover her face. The next thing she recalled was her hand going through the glass. Mrs. Diamond denied that she intentionally punched the glass. Mrs. Diamond said that she injured the back of her hand near her wrist but had no injury across her knuckles or fingers.

On cross-examination, Mrs. Diamond admitted talking to the officers and asking them to leave. She denied that she was yelling or screaming at them. Mrs. Diamond admitted that she had been drinking wine and that she probably would not pass a breathalyzer. Mrs. Diamond decided to confront Mrs. Viviano even though it was 11:45 p.m. Mrs. Diamond did not see Mrs. Viviano with a gun. Mrs. Diamond admitted grabbing Mrs. Viviano's shirt, but stated that she believed the tear in the shirt was caused by Mrs. Viviano moving backward, not Mrs. Diamond pulling her forward. Mrs. Diamond testified that she was practically pulled inside the house which is the reason her hand went through the glass when the door closed. Mrs. Diamond stated that the door did not knock her backwards.

The jury found Mrs. Diamond guilty of criminal mischief, and Mrs. Diamond was sentenced to one hundred twenty days in jail, probated.

Discussion

In conducting a factual sufficiency review, we must ask whether "a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). As a reviewing court, we "must always remain cognizant of the fact finder's role and unique position, a position that the reviewing court is unable to occupy." Id. at 9. The authority "to disagree with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Id. "Otherwise, due deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence." Id. "As factfinder, the jury is entitled to judge the credibility of witnesses, and can choose to believe all, some, or none of the testimony presented by the parties." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). "A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State." Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

"In a sufficiency review, the jury's inference of intent is afforded more deference than the evidence supporting proof of conduct." Margraves v. State, 34 SW.3d 912, 919 (Tex. Crim. App. 2000). Mental states, like intent, are almost always inferred from circumstantial evidence such as the acts, words, and conduct of the accused and the surrounding circumstances. Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998); Williams v. State, 82 S.W.3d 557, 566 (Tex. App.--San Antonio 2002, pet. ref'd); Nazemi v. State, 28 S.W.3d 806, 810 (Tex. App.--Corpus Christi 2000, no pet.). "To assess whether the evidence is sufficient to show a defendant's intent, when the record supports conflicting inferences, we must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflict in favor of the prosecution, and we must defer to that resolution." Williams, 82 S.W.3d at 566.

In this case, the jury was faced with two conflicting versions of the incident. Just as the jury was not required to believe Mrs. Viviano's version, the jury also was not required to credit Mrs. Diamond's version. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). Given the conflicts in the testimony and the relationship between Mrs. Diamond and the three witnesses she called, the jury could have discredited the defensive testimony presented.

Mrs. Diamond had been consuming alcohol on the night of the incident and was intoxicated or at least, by her own admission, had consumed sufficient amounts of alcohol that she would be unfit to drive. The jury could have believed that Mrs. Diamond was aggressive in her exchange with the police officers, based on the officers' version of her behavior and their testimony that Mrs. Diamond's friends were physically restraining her aggression. Mrs. Diamond was angry and upset with her neighbors for calling the police. Mrs. Diamond chose to confront her neighbors contrary to the advice of Danney, and Danney was concerned enough about the nature of the confrontation to follow Mrs. Diamond to the neighbors' house. When Mrs. Viviano answered the door and admitted that she had called the police, Mrs. Diamond physically accosted Mrs. Viviano.

After reviewing the entire record, we hold that the evidence is factually sufficient to permit the jury to infer that Mrs. Diamond knowingly or intentionally damaged or destroyed the glass panel on the door by punching it with her fist. See Washington v. State, No. 04-00-00676-CR, 2002 WL 31863770, at *2 (Tex. App.--San Antonio Dec. 24, 2002, no pet.) (not designated for publication) (holding jury could disbelieve defendant's statement that actions were accidental in view of other evidence presented). Given the evidence presented, the inference of intent is not so obviously weak as to undermine our confidence in the jury's verdict, nor is the inference drawn from the evidence presented greatly outweighed by contrary proof. We note that the case relied upon by Mrs. Diamond as instructive, Henley v. State, 98 S.W.3d 732, 736-37 (Tex. App.--Waco 2003, pet. ref'd), is distinguishable from the instant case. (1) In Henley, the court expressly noted, "Henley did not testify, and so his credibility, or lack thereof, is not an issue." Id. at 736. In this case, Mrs. Diamond did testify, and her credibility was an issue.

Conclusion

The trial court's judgment is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. The instant case also is unlike Ward v. State, 48 S.W.3d 383, 389 (Tex. App.--Waco 2001, pet. ref'd), in which the identity of an unknown assailant was at issue, and Reina v. State, 940 S.W.2d 770, 774 (Tex. App.--Austin 1997, pet. ref'd), in which far less evidence of the defendant's aggressive behavior and animosity toward the victim was introduced.